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Elizabeth S. Bowers, Esq;.ChairmanAtomic. Safety and Licensing BoardU. S. Nuclear Regulatory CommissionLandow Building « Room 1209Washington, D. C. 20555

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Dear Mrs. Bowers:

The .schedule set forth in your Order datedJune 7, 1976 appears satisfactory to PGandE. Eioweyer,insoiar as a date for the prehearing conference duringthe week of July 12 X have a commitment for July 15and 16.

Very truly yours,

Philip A. Crane, Jr.

CC: Mr. Glenn O. BrightDr. William E. MartinParties

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June 10, 1976

Nr. Frederick EisslerScenic Shoreline Preservation

Conference, Inc.4623 Nore Mesa DriveSanta Barbara, California. 93105

In the Hatter ofPACIFIC GAS AND ELECTRIC CONPANY

(Diablo Canyon Nuclear Pou lant, Units Nos. 1 and 2)Docket Nos. - 75 O.L. and 50-323 O.L. .

Dear Nr. Eissler:

In accordance with your telephone request of today, I am forwarding

you a copy of ALAB-277. " I am also enclosing a copy of the Nemorandum

of Understanding which was inadvertently omitted in our June 1, 1976

communication.

Sincerely,

James R. TourtellotteAssistant Chief Hearing Counsel

Enclosures as stated

cc (w/ encl):Nrs. Sandra SilverHr. Gordon Silvercc (w/ memorandum of understanding only):Elizabeth S. Bowers Yale I. Joneshtr. Glenn 0. Bright Atomic Safety 5 Licensing Appeal BoardDr. William E. Hartin Atomic Safety and Licensing Board PanelPhilip A. Crane. Jr., Esq. Docketing and Service SectionElizabeth ApfelbergAndrew J. Skaff, Esq.Raye Fleming

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June 16, 1976

Paul C. Valentine400 Charming AvenuePalo Alto, California 94301

In the Matter ofPacific Gas and Electric Company

(Diablo Canyon Nucl r Plant Unit Nos. 1 and. 2)Docket No '. 50-275 .L. and 50-323 O.L.

Dear Hr. Valentine:

'nclosedis a loan copy of the In-Camera hearing held on March 4, 1976at Culver City. California.

Sincerely.

Enclosure

cc: (w/o encl.)Elizabeth S. Bowers, Esq.Mr. Glenn 0. Br ightDr. ltil'liam E. MartinPhilip A. Crane, Jr., Esq.Elizabeth ApfelbergAndrew J. Skaff, Esq.Raye FlemingMr. Frederick EisslerMrs. Sandra A. SilverMr. Gordon SilverMr. Nlliam P. CornwellYale I. Jones, Esq.Atomic Safety and Licensing

BoardAtomic Safety and Licensing

Appeal BoardDocketing and Service Section

L. Dow DavisCounsel for NRC Staff

DISTR IBUTIONDavisKetchenTourtellotteShaparEngelhardtGrossmanNRC FilesReg Central

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UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION

ATOMIC SAFETY AND LXCENSING APPEAL BOARD

Richard S. Salzman, ChairmanDr. Lawrence R. QuarlesDr. W. Reed Johnson

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Xn the Matter of

PACXFXC GAS AND ELECTRIC COMPANY

(Diablo Canyon Nuclear Power PlantUnits Nos. 1 and 2)

<o)))) Docket Nos. -275 O.L.) 50-323 O.L.)))

Mrs. Sandra A. Silver and Mr. Gordon Silver, NorthHollywood, California, for Joint Xntervenors SanLuis Obispo Mothers for Peace and John J. Forster,Ea

Mr. Phili A. Crane, Jr., San Francisco, California(Messrs. John C. Morrisse , Dennis C. Sullivanand Bruce R. Worthin ton, San Francisco, California,with him on the brief) for the applicant PacificGas and Electric Company, ~a ellee.

'r. James R. Tourtellotte (Mr. L. Dow Davis with him onthe bra.ef for the Nuclear Regulatory Commission Staff.

DECISION

June 22, 1976

(ALAB-334)

The Licensing Board now has before it Pacific Gas

and Electric Company's application for a license to operate

its nearly completed Diablo Canyon Nuclear Power Plant.

In the course of this proceeding, the applicant sought a

"materials license" under Part 70 of the Commission's

regulations (10 C.F.R. Part 70) to receive and store at

the Diablo Canyon site nuclear fuel assemblies for future

use in that facility. The San Luis Obispo Mothers forPeace and John J. Forster are intervenors in the operating

license proceeding. They objected to granting applicant1 /

that interim license before the plant itself was licensed,

contending that the storage of nuclear fuel at the facilitywould constitute an unreasonable risk to the public health

and safety. The Commission's regulations prohibit the

issuance of a license under Part 70 where such risk exists.2 /

10 C.F.R. 570.31(d).

The Licensing Board held a three-day hearing on inter-venors'bjections, taking testimony from seven witnesses

proffered by the applicant and the staff. The intervenors

presented no witnesses of their own but their representatives,

who are not attorneys, did crpss-examine those of the other

parties. On the basis of the record developed at the hear-

ing, the Board concluded that the applicant could receive

1 / For obvious reasons, authority to receive and storenuclear fuel is granted to applicants awarded anoperating license. )

2 / The Commission's regulations provide in pertinent partthat "[n]o license [under Part 70] will be issued * * *if the Commission finds that the issuance of suchlicense * * * would constitute an unreasonable risk tothe health and safety of the public." 10 C.F.R. 570.31(d).

4 I

t e

and store nuclear fuel assemblies at its Diablo Canyon facil-I

ity without creating any'~unreasonable risk of public harm.

Accordingly, on December 23, 1975 the Board authorized the3 /

applicant to be licensed to undertake such storage.

The intervenors have jointly appeal'ed from the Licensing4 /

Board's December 23rd order. They argue that it must be

set aside because of procedural errors and because it. lacks5 /

support in the record. We do not agree.

Joint Intervenors direct our attention to three proce-

dural rulings by the Licensing Board which they assert are

grounds for overturning the decision below. The claims are

made that the Board (1) changed the issues in controversy

without notice to the representative of the Mothers for

Peace, to that intervenor's serious disadvantage; (2) denied

improperly intervenors'ttempt to discover details of the

3 / The Licensing Board's December 23rd order is unpublished.

4 / Our jurisdiction is normally limited to appeals arisingin proceedings under Part 50 of the Commission'sregulations. 10 C.F.R. 52.785(a). We entertain thisPart 70 appeal by virtue of a specific delegation ofauthority from the Commission. CLI-76-1, NRCI-76/2, 73(February 5, 1976).

e

5 / On March 18, 1976 we denied Joint Intervenors'otionto stay shipments of nuclear fuel to the plant sitepending our di'sposition of this appeal. ALAB-320,NRCI-76/3, 196.

0 I

7

security plan for the Diablo Canyon facility and (3) limited'

unfairly intervenors'ight to cross-examine witnesses for the

purpose of eliciting testimony about the value of the nuclear

fuel assemblies and the number of saboteurs who might be able

to break into the plant. We discuss those assertions in that

order.

1. The modification of the issues in controvers . The

hearing below was precipitated by a motion made on April 10,

1975 at a prehearing conference. Mrs. Sandra Silver, repre-

senting intervenor Mothers for Peace, there moved to preclude

the applicant from receiving and storing nuclear fuel assem-

blies at the Diablo Canyon site before the facility was,

licensed for operation (Tr. 444). On June 3rd, Nr. Gordon

Silver, husband of Mrs. Silver and representative in thisproceeding of intervenor John J. Forster, moved on Forster's

behalf "to allow him to associate with and support [that]MFP motion at all proceedings connected with it." On June

24th the Licensing Board acted on both motions. Xt ruled

that the MFP motion raised factual issues which would require

a hearing for resolution and stated those issues to be:\

(1) The forces to which the fuel storagebuilding could be subjected to as theresult of the occurrence of a hypo-thetical earthquake appropriate forthis site;

0 I

'

(2) The probability and significance ofthe formation of a critical mass asa result of the application of thisforce (inc'luding the presence of waterdue to possible pipe breakage);

'I

(3) The probability and significance ofa. critical mass being formed by anact of sabotage; and

(4) Alternatives to the storage of the. fuel at the site. 6 /

There were no objections to the Board's formulation of the

issues. The Board also granted Mr. Silver's request on

behalf of intervenor Forster "to associate with and support"

the MFP motion.

At Mr. Silver's instigation, in October the Board held

a telephone conference call to discuss matters relevant to

the conduct of the fuel storage license hearing which had

been calendared to get underway the following December.

(Tr. 650-52). For reasons not entirely clear to us, Mrs. Silver

was apparently not asked to and did not participate in the

call. (Xbid.) Mr. Silver was aware of that fact at the time,

but made no mention of it. The record is ambiguous about

whether the Board failed to appreciate Mrs. Silver's absence

from among the parties on the line or assumed that Mr. Silver

was speaking for her as well for himself.

6 / Order of June 24, 1975, p. 4 (unpublished).

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During the course of the conference call the Board made

several rulings. .Pertinent here are its instructions to the

parties to assume for purposes of the forthcoming hearing,

first, that the Diablo Canyon fuel storage building had col-

lapsed in an earthquake and damaged the racks in which the

nuclear fuel was stored and, second, that the plant's secu-

rity arrangements had been breached and saboteurs had gained7 /

entry. The Board then indicated that, in light of 'those

assumptions, only two issues remained for trial: (1) "the

effect of an earthquake" and (2) "the effect of entry 'of8 /

i'aboteurs."'he Board dropped the fourth issue (alter-

native fuel storage sites) altogether, observing that itinvolved only economics and was not relevant to the issue

of the public health and safety, the subject of the materials9 /

license hearing.

The Licens'ing Board did not memorialize its actions in

a formal order. Although Mr. Silver admitted discussing

other matters raised at the conference call with Mrs. Silver,

he stated that he did not draw her attention to the Board's

simplification of the hearing issues. (App. Tr. 13-14, 77-78).

Mrs. Silver represents to us that she did not become aware of

7 / Licensing Board Order of December 23, 1975, p. 5.

8 / Xbid.

9 / Ibid.

the modifications virtually until the opening of the hearingln/

itself. The Mothers for Peace now advance the claim that

the failure to give Mrs. Silver timely notice of the change

in issues placed them at an "unconscionable disadvantage"

in the hearing. For this reason, they say, the Board's order

must be reversed.

We begin our analysis by observing that the Board below

expressly found intervenors not to have been prejudiced by

being required to go ahead with their case in the circumstance's

described. (Order of Dec. 23, 1975, p. 3; Tr. 658.) Nor do

intervenors themselves particularize any disadvantage under

which they were compelled to labor by the Licensing Board's

rulings. On "the basis of our review of the record we per-'

ceive none.

We reached our conclusion by the following route. First,the Board below did not use the conference call to inject. new

issues into the case. It merely eliminated certain existing

matters in controversy by requiring the parties to assume

(for purposes of the part 70 license hearing) that intervenors

would prevail on those issues. Thus, as a consequence of the

Board's conference call rulings, the intervenors no longer

needed to show that the facility could not withstand an

10/ Joint Intervenors'rief, p. 7, and Tr. 650-51.

earthquake (this was issue (1)). Instead, they had only to

demonstrate how, in the event of such a'eismic occurrence,

the stored nuclear fuel might be formed into a "critical11/

mass" and, should that transpire, how the public might be

harmed as a result (issue (2)).

Similarly, the Licensing Board did not burden inter-

venors by ruling that the parties need only consider the

consequences of "the entry of saboteurs" into the Diablo

Canyon facility and not concern themselves about how that

entry was achieved. To the contrary, as the Board below12/

noted, this ruling relieved intervenors of a burden they

would otherwise have had to shoulder, i.e., of demonstrat-

ing how intruders could evade or overpower the facility'sguard force. In other words, for purposes of the hear'ing

'the Board .accepted intervenors'rgument that applicant'sI

security arrangements would be inadequate (issue (3)," part 1).

This allowed intervenors to make out a case against issuance

of the materials license on sabotage grounds simply by show-

ing —if they could —how saboteurs might use the stored

nuclear fuel to endanger public health and safety (issue

(3), part 2) . And the dropping of point (4) by the Board

meant that, if intervenors could prevail on either of the

ll/ "Critical mass" and "criticality" are discussed inpart II, infra, pp. 18-19.

12/ Licensing Board Order of December 23, 1975, p. 3.

4

two issues remaining (i.e., the effects of sabotage or earth-

quake), the Part 70 license would have to be denied even. ifthe applicant lacked an economically reasonable alternative

to storing the fuel at the Diablo Canyon site.In short, the Board's actions in the conference call did

no more than eliminate intervenors'bligation to establish

(or to discredit their opponents'howing on) a number of key

points. Whether the Board below should have reformulated the

issues as it /id may be debatable. But the reformation

accrued to intervenors'enefit, not detriment. Thus, even

accepting as true Mrs. Silver's lack of awareness of the

Licensing Board s simplifi'cation of the trial issues, the

only consequence was her appearance at the hearing primed13/

to litigate four issues when only two remained to be heard.

Be that as it may, it is fruitless for a party to complain14/

on appeal about trial rulings which operated in its favor.

We do agree with the intervenors that the Licensing Board

should have reduced its prehearing conference call rulings to

writing. Had this been done, the confusion about the, number

13/ Lack of notice of those changes might have inconveniencedany witnesses brought by intervenors to testify aboutissues no longer in the case. As we noted, however,intervenors had no witnesses of their 'own.

14/ Ford Motor Com an v. Mathis, 322 F.2d 267, 274 (5th Cir777, 780-81 5th Cir. , certiorari, denied, 317 U.S. 643

h1941), certiorari denied, 316 U.S. 664 (1942); Mont ornerWard a Co. v. -Medlxne, 104 F.2d 485 (4th Cir. 1939

4

10

and nature of the issues to be tried probably would have

been. avoided. Indeed, the Commission's Rules of Practice

contemplate that a licensing board will "enter an order

which recites the action taken at the conference * * * which

limits the issues or defines the matters in controversy

to be determined at the proceeding." 10 C.F.R. 82.752(c).

The Board's failure to have written and entered such an

order following its rulings at the conference call was

error. For the reasons just described, however, in thisinstance the error was harmless.

Manifestly, that. result was fortuitous. But we can

envision other situations where a failure to enter written

procedural orders may not, be so harmless. We recognize

that instances arise when licensing boards feel they must

hold prehearing conferences by telephone. For thereasons'his

case illustrates, however, on those occasions the

board must insure that orders rendered over the telephone

are followed up promptly with written confirmation to allparties. 'Honoring this practice -- required by the rules—not only should avoid, repetition of what happened here, but

also would enable the parties to bring to the boards'tten-tion before memory fades any discrepancies between the oral

and written orders.

Our disposition of this point renders it unnecessary

to decide whether the staff is correct in its suggestion

that, on the facts of this case, Mr. Silver's partici-pation in the conference call was adequate notice to

Mrs. Silver of any action taken there. (See Tr. 655-66).,

We take this opportunity, however, to reiterate what we

said in North Coast: "As a general matter, conference calls

which include some parties and exclude others are to be'5/avoided except in the case of the most dire necessity."

That case, unlike this one, involved the possibility of a

violation of the Commission's rules against ex-parte commu-

nications. The circumstances here exemplify another good

reason why conference calls among fewer than all the parties

are unwed.se.

In sum, we believe that considerations of simplefair-'ess

make it the duty of any party who becomes aware that

another is not represented at a conference call to bring

that fact to the presiding officer's attention. And it isthe obligation of the board and the staff (as a represent-

ative of the public interest) to make appropriate inquiryat such a call to ascertain that all the parties are i.n

15/ Puerto Rico Water Resources Authorit (North Coast NuclearPlant, Unxt 1 , ALAB- 3, NRCX- 6 , 94, 96 (1976).

fact on the line or have waived representation. By taking

that precaution, problems of the type encountered here and16/

in North Coast should be. eliminated.

2. Denial of discove . For reasons which need not be

rehearsed here,'he Licensing Board reserved consideration

of the adequacy of applicant's security plan to the operat-

ing license hearing. Completion of discovery in this area

has been delayed pending the adoption of final arrangements17/

for keeping information about the plan confidential.

This was one of the reasons which underlay the Board's

decision to instruct the parties to assume for purposes of

the materials license hearing that the security plan was18/

inadequate, thus making it necessary in this case to

delve directly into questions of the risk of harm to the

public health and safety from successful acts of sabotage19/

involving the stored nuclear fuel assemblies.

16/ We appreciate that North Coast, was handed down after theconference call at issue xn this proceeding. Neverthe-less, what we said in that decision should have beenobvious to the Board below and to the staff. Particularlywhere parties are proceeding pro se and are not fullyaware of procedural niceties, the boards must act scru-pulously to protect their interests in order to insurethat justice is not only done, but seen to be done.

17/ See Joint Intervenors'rief, p. 10.

18/ Licensing Board Order of December 23, 1975, p. 5.

19/ See part II, infra.

13

Intervenors nevertheless contend that their lack of

discovery of the security plan handicapped the presentation

of their case. We think intervenors'osition not well

taken. A purpose of the security plan is, of course, to

exclude unauthorized individuals —including saboteurs—from the facility. The Board, however, required the parties

to assume that security was breached. Consequently, the

staff is correct in pointing out that this left intervenors

free to assume that security would be breached by as many

individuals as were necessary for as long as needed to

establish "criticality." Knowledge of applicant's security

plan was thus irrelevant for purposes of the Part 70 hear-

ing as structured by the Board; consequently it was not

error to hold the hearing before discovery was completed

in this area.

3. Limitation on cross-examination. Intervenors'inalassertion of procedural error involves two occasions on which

the Licensing Board cut short their cross-examination. The

first instance involved Nr. Lindblad, one of applicant'switnesses. Intervenors contend that the Board would not letthem explore through Mr. Lindblad the situation which would

be created in the event more than four saboteurs broke intothe plant. It was intervenors'osition before the Licensing

Board that "the consequenceof an act of sabotage is a

14 .—

function of the number of saboteurs". They argue to us

that their "position was compromised by the Board's limi-20/

tation" of their cross-examination.

The short answer to this charge is that intervenors

simply have misconceived the witness'estimony and theI

Board's rulings. Mr. Lindblad merely testified that, in

his judgment, the plant's internal security forces could

handle any threat up to four intruders,'ut for greater

numbers the applicant would rely on "outside public agencies

for'einforcement." (Tr. 1027-28, 1033). The Board did not1

use this testimony as a basis for ruling out consideration

of acts of sabotage achievable only by more than four indi-viduals. Neither did it limit the number of intruders

intervenors might hypothesize. What the Board did do at

that point was to remind the intervenors that they were to

proceed from the assumption that "criticality" would be

~ achieved by whatever number of saboteurs entered the facil-ity and, therefore, to move along and address themselves

to "the significance of criticality" (Tr. 1029). The Board

carefully explained to intervenors that "if you are able

to establish that there would be a significant result flow-

ing from criticality", it would allow them to take up the

likelihood of its'ccurrence. (Tr. 1034). Given the posture

20/ Joint lntervenors'rief, p. 10.

of the case and the Board's assumptions regarding the sab-

oteurs'ffectiveness, we think the ruling complained of

was within the Board's discretion to make. Under the Com-

mission's rules, it was fully entitled to limit the cross-

examination of. witnesses to exclude irrelevant testimony.21/

10 C.F..R. I2.757(c).

Intervenors also complain that the Board sustained

objections to'heir questions about the value of nuclear

fuel assemblies. (Tr. 1205-06). Intervenors'heory was

that these are costly items which might be stolen for

blackmail purposes. We think the Board did not err in

cutting short this line of inquiry as "too far removed from

our immediate concerns" in the hearing. (Tr. 1206). As we

noted, the parties were instructed to accept as fact that

unauthorized persons had already gained possession of the

nuclear fuel. 'The point of the hearing was to explore the

21/ The applicant also suggests (br. p. 11) that the inter-venors'ross-examination was properly cut off because"license applicants need not consider actions by an'armed band of trained saboteurs'", citing Consolidated

0 ' ' '.7 ABC 825, 830 (1974). The applicant misreads our decision,for it also holds that it must demonstrate that it has asecurity'lan adequate to detect encroaching sahoteurs andto alert law enforcement authorrties to'heir presencequickly and effectively. Ibid. See 10 C. F. R. 5550. 34 (c),73. 1, 73. 2 (p), and 73. 40; Regulatory Guide l. 17. Thelimitation of the intervenors'ross-examination was per-missible for the reasons discussed above, not because allaspects of protection against saboteurs are beyond theBoard's ken.

16

possible risk of harm or injury to the public through their

use of that fuel. Intervenors'uestions were clearly

tangential to that basic inquiry and the Board did not'abuse

its discretion 'in declining to allow them. 10 C.F.R. 52.757.

In the first portion of this opinion we explained why

intervenoqs were without cause to complain of the Licensing

Board's procedural rulings. We turn here to a consideration

of their substantive dissatisfaction with the decision below.

In order to place their objections in perspective, as well as

to indicate the context in which the Board's rulings were

made, we preface our discussion with a brief and perhaps

somewhat elementary description of nuclear fuel, how it is

used and the way it is stored.

be fueled with uranium dioxide (uranium-238 enriched with uran-

ium-235 to a maximum of 3.1%). The fuel is in the form of

"sintered" pellets; that is to say pellets which have been

sufficiently heated to cause them to assume the form of a dense

ceramic material. (Tr. fol. p. 1130, p. 7). New fuel pellets are

not dangerously radioactive and may safely be held in the22/

hand. For use in the reactor, the pellets are stacked in

22/ Tr. fol. 1130 at p. 8, 1157, 1163.

0

tubes made of a'orrosion-resistant alloy of zirconium known

as "zircaloy". (Ibid.) Each tube measures about twelve feet

long, but has an outside diameter of only 0.374 inches (Tr.

fol. p. 1130, App. A). (Their slender shape suggests why they

are c'ommonly called "fuel pins".) After being loaded with23/

pellets, the tubes are pressurized with helium and sealed.

Unused fuel pins, like new fuel pellets, may be handled with-out danger. (Tr. 1160). The fuel pins in turn are permanently

assembled in a 17 x 17 square array, are fixed in place by top

and bottom nozzle assemblies and laterally supported by gridsat 6 positions. along their length. Each array of fuel pins

is known as a "fuel assembly" or "fuel element," is approx-

imately 13 1/2 feet long and 8 1/2 inches square, and weighs.

approximately 3/4 of a ton (1500 lbs.) (Tr. fol. 1130, App. A.).,w

It is in this form that the uranium fuel is placed in reactors.In about one third of the Diablo Canyon fuel assemblies,

certain of the fuel pin spaces hold movable "controlrod cluster assemblies" containing neutron-absorbing material,which can travel in and out of the array. And in lieu of certainother pins, steel rods with "burnable poisons" have been insertedfor purposes related to the efficiency of reactor operation.

(Tr. 1050-51).

23/ Because it is in hard pellet form, the nuclear fuel is notin uniform contact with the fuel rod itself. The mainpurpose of the helium is to use its superior heat conduct-ing properties to facilitate the transfer of heat from thefuel to the rod when the reactor is in operation.

18

The assemblies a'e made at a fabrication plant (in thiscase by Wes'tinghouse,in South Carolina) and trucked in reusable

sealed casks to the reactor. Each cask is steel, holds two fuel

assemblies, and weighs 7,400 pounds (3.7 tons) loaded. (Tr. 1163).

It is permission to receive and store these fuel assemblies

at the Diablo Canyon facility which the applicant sought and

the Licensing Board granted in this proceeding.

The chain reaction principle on which nuclear reactors

operate has often been described. For purposes of this case

it is sufficient to observe that, under appropriate conditions,

a uranium atom which absorbs a neutron may undergo "fission,"that is split into two or more lighter elements ("fissionproducts"), release energy in the form of heat, and free

additional neutrons in the process. Should these neutrons

strike other uranium atoms and one cause fission, the process

will be repeated with the same consequences of heat genera-

tion 'and neutron release. In an operating nuclear power

reactor, conditions are maintained that assure the occurrence

of this stable "chain reaction" in which each fission triggersanother. This balanced condition of continuous neutron pro-

duction and loss is known as "criticality"; a physical system

in which such a process is taking place is said to have ."gone

s

19

24/critical." If the system is a power reactor, the heat

energy released by the fission process is removed from the

fuel by cooling water which ultimately produces steam to

drive a turbine and generate electric power.

The stable chain reaction process just described can

be sustained only where a series of essential conditions

are first satisfied. To start. with, there must be a suffi-cient supply of uranium fuel. No chain reaction can be sus-

tained without the presence of a "critical mass." Second, the

fuel must be placed in a "moderator" (usually water) to reduce the

speed of neutrons. (Tr. 893, 1139); For reasons we need not go

into here, this increases the likelihood that the neutrons

24/ In more technical terms, a state of criticality existsin a neutron multiplying system when the number ofneutrons in one generation equals the number in thepreceding generation. In this condition the neutronproduction rate (due to neutron absorption and fissionin 5U) is exactly equal to the neutron loss rateNeutrons may be lost by absorption in 23>U (leadin~ tomore neutrons), by non-productive absorption in l3 U

and other materials in the system, or by leakage fromthe system. The ratio of the number of neutrons inone generation to the number in the preceding generationis commonly called the multiplication factor and is oftenreferred to as "K-.effective" (Keff) ~ Thus for exactbalance (criticality) the multiplication is unity andKeff~l. An unbalanced condition in which the multipli-cation is greater than unity (a condition known as 'super-criticality) causes the neutron population to increasecontinuously until some change acts to restore the bal-ance so that Keff again equals unity. In a normal reactorthe restoring action may be taken by the operator or itmay be the action of an automatic control or. safety device.

20

will remain in the system, strike the uranium atoms and

cause fission. Third, the fuel elements, and the rods

within those elements, must be arrayed in a proper geomet-

ric pattern, with the fuel/moderator ratio within certain/

limits. Finally, the heat produced by the fission process

='must be carefully controlled. If the moderator is allowed

to overheat, rather than slowing the neutrons it will letthem escape ("moderator voiding," Tr. 1087). And heating

the fuel itself increases the likelihood that the uranium

will simply absorb neutrons rather than undergo fission("doppler coefficient" ). (Tr. 1141). In either event, these

feed-back mechanisms act to terminate the state of criticality.In the limiting case of an uncontrolled power excursion or

"supercriticality event" (see footnote 24, supra), the

sudden generation of great amounts of heat causes the water

moderator to flash into steam. Unless the excursion isotherwise controlled, the forces created by enormous steam

pressure, which occurs almost instantaneously, will thrustthe fuel elements apart or distort the slender fuel pins.Either case immediately disrupts the geometrical configura-

tion of the fuel, thereby destroying a condition necessary

for criticality and terminating the chain reaction.

l

21

I

At the Diablo Canyon facility, 270 fuel elements can

be stored vertically in specially constructed steel racks.

The racks retain the fuel elements in a "subcritical array",

i.e., sufficiently separated to prevent the formation of aIcritical mass. The racks themselves are permanently affixed

to the bottom of a pool constructed of reinforced concrete

and lined with steel. This fuel storage pool is 40 feet

deep and filled with cold borated water to a point 23 feet

above the top of the fuel. The water protects persons in

the fuel building from exposure to radiation when "spent"

(i.e., used and therefore highly radioactive) fuel elements

are stored in the pool. As an additional safety measure,

neutron-absorbing boron is maintained at a concentration

in the water high enough to prevent the establishment of

a critical state under any geometrical configuration of

the fuel elements. (Tr. fol. 850, pp. 5-9).

Because of their weight, individual fuel elements can

be inserted in or removed from the fuel racks in the pool

only with a powered crane. (Tr. 1039, 1041). Even were some

of those elements removed from the rack and assembled in the

pool in the appropriate geometrical array, criticality could

not be achieved unless the borated pool water was replaced

or substantially diluted with the fresh water. It was

22

testified that the dilution would require more than

four and one half hours to accomplish under the most favor-

able conditions; total replacement would take longer. (Tr.

fol. 850, pp. 6-9).

The foregoing recital is well documented in the record

and is not disputed. At issue before the Board below was

whether, given these conditions, there exists an unreason-

able risk to public health and safety if a critical mass

were to be formed as the result of an earthquake or an

act of sabotage. We turn now to these questions.

B. Consequences of an earth uake. The Licensing Boardl

held that the Diablo Canyon fuel storage facilities were s'o

II'esignedand located that the consequences of an earthquake

"cannot lead to the formation of a critical mass." (December

23rd order, p. 8.). On appeal, Joint Intervenors

neither challenge nor discuss that conclusion in theirbrief, much 'less attack the evidence introduced before

the Board below upon which it rests. In the circumstances25/

we need not, consider the issue and content

ourselves with noting that, in our judgment, the

25/ "Appellate tribunals may generally disregard issuesnot briefed and we follow that practice." NorthernIndiana Public Service Com an (Bailly GeneratrngStation, Nuclear-l, ALAB-207, 7 AEC 957 (l974)(citations of authority omitted).

I

23

.Licensing Board's.conclusion on this question stands on a26/

firm evidentiary footing.C. Risk to the ublic from incidents of sabotage. For

reasons" explained earlier, the Board instructed the parties

to try the case on the assumption that saboteurs would be

able to enter the Diablo Canyon facility and gain access to

the stored nuclear fuel elements. (See p. 12, ~su ra) . In

essence, this meant the parties were required to address two

principal issues: first, the likelihood that saboteurs could

use that fuel to start a chain reaction ("achieve criticality")

and second, if they did so, what harm to the public might ensue.

26/ Both the pool and storage racks are designed. to withstandwithout damage earthquakes whose effects are twice assevere as those anticipatible in the DiabloCanyon area. As long as the fuel elements are in theracks no critical mass can be formed. Should the storageracks collapse or the fuel elements be dislodged andfall into precisely that geometrical arrangement necessaryto criticality, the borated pool water would preclude itsoccurrence. The pool is designed so that. neither rainwaternor water from the plant's piping systems can dilute thepool water sufficiently to allow criticality; it has nobottom drain and the borated water can be removed only bypumping. Moreover, all the facility's fresh water storagetanks are situated below the level of the fuel storagepool. The only fresh water piping systems above pool levelare closed off by valves located below the pool elevation.Should the pool water all leak out, criticality would thenbe impossible because of the absence of the necessary,,moderator. See Tr. fol. 850 (Lindblad); fol. 1130 (StaffSafety Evaluation).

24

To this end the applicant proffered several expert wit-

nesses, including its engineering project manager (Nr. Lindblad)

and an expert on radiation effects (Dr. Brunot). The staff

tendered four additional witnesses, all .with considerable

experience in nuclear power engineering. Of the seven witnesses

in all, two held earned doctorates .in nuclear engineering;

none was challenged as to his technical qualifications.

The essence of their testimony was that it was virtuallyimpossible for intruders to be able to establish criticality'

l

using the new fuel assemblies stored at Diablo Canyon but,

even could they do so, that criticality would be, of but

momentary duration without significant consequence for public

safety. The intervenors offered no witnesses of their own,

expert or otherwise. Their participation was limited solely

to cross-examination of .the other parties'xperts in an

effort to weaken their testimony.

On the basis of the evidence adduced before it, the

Licensing Board found that formation of a critical mass out

of the stored fuel elements "would be extremely difficult,"and that the likelihood of saboteurs being able to do so,

though theoretically possible, was "remote." The Board did

not elect to rest its decision authorizing the fuel storage

license on this ground, however. Rather it relied on its

25

further finding that, even were saboteurs successful in form-

ing a critical mass from the nuclear fuel, the public would

not be subjected to any unreasonable risk of harm.

1. Likelihood of saboteurs formin a critical mass. On

appeal, the intervenors do not question the Licensing'Board's

assessment, of the likelihood of saboteurs being able to form

a critical mass, apparently being of the view that even a

"remote" possibility is sufficient cause for concern. On

this point, therefore, we simply note that our independent

review of the record confirms that the Board below did not

underestimate the possibility of a successful effort by27/

saboteurs.

27/ The expert witnesses testified that several difficultsteps would first have to be accomplished to achievecriticality. First, the boron content of the water -inthe fuel pool would have to be diluted from its presentconcentration of 4550 parts per million to a maximum of2125 ppm, a process which would take at least four andone half hours with the fresh water sources availableat the site (the pool volume is almost 54,000 cubic feet.)(Tr. fol. 850, pp. 6-9.). Then at least three fuelelements, the minimum needed to form a critical mass,would have to be removed from the racks. (Tr. 1038).These weigh about 3/4 of a ton apiece (Tr. 1041). Conse-quently the removal would have to be accomplished with acrane dependent on offsite electric power that would beavailable only on the assumption that the saboteursremained entirely undetected. (Tr. fol. 850 at p. 12).Because the nuclear fuel is only slightly enriched with3.1% U-235, it will become critical only if the closegeometrical array of the fuel rods is carefully maintainedby keeping a horizontal distance between the fuel elementsof .3,inches (Tr. 861 and fol. 1130 at, p. 13). This is why theassemblies must be removed from the racks, which maintaingreater separation. (Ibid.) . Finally, even were therequisite number of fuel elements placed in the propergeometrical array for criticality initially, steam pressure(continued on a e 26).

26

2. Conse uences of a criticality incident. The intervenors

start= from the unexceptionable premise that an applicant for

a materials license, under Part 70 must prove that no unreason-

able risk of public harm is involved in granting it. 10 C.F.R.

552.731 and 70.31(d). The heart of intervenors'ase is that

this applicant did not carry that burden. Inintervenors'iew,

the witnesses inadequately analyzed the consequences of

a criticality incident. Therefore, intervenors say, they well

may have underestimated the potential danger should such an

event occur, through sabotage or otherwise.

(a). To comprehend the testimony directed to this ques-

tion —and intervenors'riticism —it must first be under-

stood that a state of criticality, or for that matter a

supercritical power excursion, does not in and of itselfk

27/ (Footnote continued from previous age.)

- generated by that occurrence would disperse theminstantly, automatically ending the critical state'(Tr. 1049, 1064). The witnesses testified that nobindings placed around the fuel elements would besufficiently strong to overcome the forces of dis-persion (Tr. 1059). Even if the elements could bekept together, the slender fuel pins themselves wouldbe twisted out of shape sufficiently to destroy thegeometry absolutely necessary to maintain the criticalstate (Tr. 1064). As we noted, the intervenors neither

'fferedcontrary evidence of their own nor challengedthe qualifications of the witnesses who so testified.In the circumstances, the Board's characterization ofthe likelihood of saboteurs establishing criticality withthe stored fuel as "remote" was compelled by the record.

27

28/represent a serious risk to the public at'arge. Research

reactors, for example (Tr. 1200), for yearS have operated con-

tinuously at power levels up to five meg'awatts 'in open pools

(about 20 feet beneath the surface)'nd some of th'em have been

deliberately put into supercritical excursions (pulses)

for,experimental purposes. Operators and'isitors may look

down upon these critical nuclear reactors at essentially no

risk to themselves. We do not understand intervenors to

suggest otherwise. Rather, their brief focuses on the

radioactive fission products'which would be formed as a

result of a criticality incident and on whether those pro-29/

ducts are the source of a potential safety hazard.

The answer to that question requires a basic understand-

ing of the release mechanism for fission products. When

nuclear fuel elements "go critical," the radioactive products

created by the fission process do not precipitate out to the

bottom of the fuel pins in the manner of many familiar chem-

ical reactions. Rather, the new lighter elements are created,

atom by atom, throughout the oxide fuel pellets (UO2). 'Zt

28/ To be sure, the neutron and gamma radiation produced'y

a critical or super-critical assembly if not. shieldedwill present a hazard to individuals in the immediatevicinity. For the various scenarios considered atthese hearings, water shielding was normally assumedto be present at least to some degree and the onlypersons in the vicinity of any of the criticalitysituations examined would be the saboteurs.

29/ Joint Intervenors'rief, pp. 2-6.

J

28

is to be remembered that although fuel elements can be

"burned" in a reactor for extended periods, the actual

quantity or uranium transformed by the fission is rela-

tively small.) To be released to the atmosphere, these

fission products must first diffuse out of the solid UO2.

This process is extremely slow and takes place to any

appreciable extent only when the fuel is held at high

temperature (greater than 1000'F) for an extended period30/

of time. Those fission products which diffuse out of

the pellets are contained by the zirconium cladding of

the fuel pins; only upon failure of the cladding willthey be released into the water moderator, which itselftends to absorb them. (As discussed earlier, water must

be present as a moderator or there will be no criticalityat all.) In sum, only that fraction of the fission products

produced which diffuses from the fuel pellets, gets by

the cladding and escapes from the water into the atmosphere

can pose a threat to the public at large.

(b). Applicant's radiological expert, Dr. Brunot,

addressed himself to the likely results of a criticalityincident with the new fuel stored at Diablo Canyon.(Tr. fol.912). He elected to respond to the hypothetical situation

30/ See Final Safety Analysis Report (FSAR), Chapter 11.1, andTr. 1205.

29

suggested by 'intervenors by comparing it to the

consequences envisioned in the "Fuel Handling Accident"

analysed in the Final Safety Analysis Report. ("FSAR") forthe Diablo Canyon facility. Like the hypothetical scenarios

postulated by intervenors, that accident assumes an incident

in the fuel storage pool which releases radioactive fissionproducts -- albeit from spent rather than new fuel. The

potential consequences of such an accident are explored

in some detail in the FSAR, including whether such an event

might. expose the public to radiation in excess of guidelines

accepted by the Commission in the interests of safety. See

FSAR 515.4.6.

Dr. Brunot's approach was to ascertain what he deemed

the key factors in both situations and then 'to adjust

those factors as he thought appropriate to reflect differ-ences between the spent fuel accident and the postulated new

fuel incident. Utilizing those figures, he then estimated

the potential public exposure to fission products from what,

in applicant's judgment, was the most serious incident involv-

ing criticality which saboteurs might be able to create withthe stored unused nuclear fuel, assuming arcruendo (as the

Licensing Board had directed) that they could establishcriticality.

J

1

Dr. Brunot explained that the quantity of fission products

produced by an incident of criticality was dependent upon the

number of fissions which occurred during the event. For,purposes of his analysis, he reviewed'existing data and

deliberately chose the largest number of fissions which had

ever been reported as occurring in a criticality accident

(some 6 x 10 ) on which to base his calculations. He then

estimated a dose from criticality accidents based on compar-

ison of the types of radioactive isotopes which would bei

present in an incident involving new fuel as distinct from

a spent fuel accident. The proportion of isotopes with'long

half-lives would. be larger in the latter situation because a

considerable part of those with short half-lj.ves would already

have decayed. He then determined the portion of the isotopes

which would diffuse (escape) from the fuel and the cladding,

and adjusted that figure to account for the effect of isotope

absorption by the water moderator and the filtration system

of the fuel assembly building to find that fraction of the

fission 'products. which would actually reach the atmosphere.

Finally, to arrive at the dose to which a member of the public

might be exposed, he reduced that fraction to take account of

atmospheric dilution (i.e., reduction of isotopic concentra-

tion as a result of dispersion by air currents) and radioactive

decay which could be expected to take place between the release

point of the isotopes and their travel through the atmosphere

,e

31/ng a spent fuel handling accident,"less than those followi

to the site boundary. Based on these considerations,t

Dr. Brunot testified that the result of a deliberately set

criticality incident with new fuel "would be expected to

cause potential radiolo ical exposures approximately 600 times

and be "well below the

Commission] for design

"would not, consitute a

guide line levels established [by the

basis accidents" and, therefore,undue risk to the health and safety

of the public." (Tr. 'fol. 912 at p. 10, 949-'3).

Dr. Hiron." and Mr. Marotta testified for the staff that,although they did not perform the calculations independently,

they did review Dr. Brunot's procedures and computations. lntheir judgme> t, Dr. Brunot's methodology was acceptable and

his results 'conservative." Xn other words, the staff's expert

witnesses e.pressed the view that if there were any error inDr. Brunot

rather tha

'> conclusions, it was that he had overestimated

underestimated the seriousness of a criticalityincident w,th new fuel. (Tr. 1146-1151).

,31/ The F el Handling Accident consequences were reported forspent fuel in the FSAR at Table 15.4-41, summarized as follows:

SiteBound.

Low Pop. NRC GuidelinesZone (10 CFR Part 100)

Whol BodyDos; (REM)

Thy kaid Dose(R 0)

2.5

11.1

0.10

0.46

25

300

q BQOL SG'xebec.aQQQ eararld Qo i3&BGG ~ p"LF ".>Qiforf. 33,E 8

~&a gfejsx )dx,.C&b G Qo 9."E>«.'3~ erf f Barf;t b&LS K Jae'b,toQdgd

o~ r'~&e~eqxe & l hie~;,~'-~fs'R w&Q rf9LM DEE&bLoQL y9E,Essed

Bea~'c j QOB vJ&dslnLxoaggG aearfaogxe .rsoLpoloLbr x lGLDQ&,'oq ~saffs;;$ CC

"gSEE&b rooh E>if f.CbrEGlf J&EI~ ~Q&$8 6. pQLMo Cl o > &Boff.t f;;)rf."~ 8„?g f

erB yd] berfa~,fdG:tae BX&vej: &QLX ebLop, edd wofeg j:3.go~" ed brfy>

, 9'xo39'xeif3 s hQG 'NQ&bLoos BLBGcf QQL 8&5 Loz t fE~>LP 8 LATIP&9

vdelt~a bQG rf'5Gerf &if'S Aai'x erlbQo QG &Jrj+LBQoo -toQ bJEro'<f'"

. (Ff.'-ef E!,Ol .q DG KlQ .IOR .xi) '.Oil<fvc~< 91',".

> J'Gl'E:f'EGDB &if'xone b&LELDB&t 60+oxGN,iv| bAG

g «)JNA&bQ&gebQL BQoL s G r.liefso &if'YSoi'xsg Soif Dl.b $~&r,.r Exq~~iY':f. i.'-':—

QT..BQOiBGdvqmoo i>QG aexobeoozq a'BorEEE «8 . zC:z=-,<.v=.x;"-;:.'p ye,~ t

bQG &$ds9 g&ooG 86w ppoI oborfd'3f~~

'x&cY& 8 0 isw E eff't BK)'xow LeifSo

rEL lo'1 x& PQG 9 f&w 0 efH

8 NOQEJ'xH .~Q,QE;em;."~EEE ~.igrfg

&V.LDSU". > '<"")6

f'f&iv erf + f>38'~e'xq~'.3 8~ 88&Q

b&dsfffL:Paeaovo bsrf erl DGrl9 asw 9i,aQOL'aar"Qoo ", NOQDLS

+9L.CGOLdixo G 3o 8881TBDOLL&a &if'eGjfti.WB'.)»''rfv ~'EGrf.f ..,:Mf >i,l

. (,CPS'-"off I.C . XT} . X&rf2;ver rfd:w;>Q&;~soEE;:

e ~ u

be ~'xoqe x exew 8&OQ&gp&BQoo gQ&bgggg yyQj fbQ;,,zoj:IOR af; besixcmmUB,1:0-5.2X eidGT DG F1'8'if'L I&LB,PQ&qa

8&r:-L.LOP) ' el '3HN . QGH "vJG<f

(npr. ~~G~ ffm O.'.) &QOZ9:t f,P

.bQuoG

OOF,

Or.o

8"..0

32

The Board below found that "the radiological conseguences

of the formation of a critical mass in the fuel storage pool

,would be no greater .than those re'suiting from a spentfuel'andling

accident and are therefore'acceptable", and concluded

that storage of unused nuclear fuel at the Diablo Canyon

facility in the manner described would pose no unreasonable

risk to the health and safety of the public. Those find-32/

ings and conclusions rest on the foregoing evidence.

(c). Although intervenors proffered no evidence con-

trary to that relied upon by the Licensing Board, they

nevertheless argue on appeal that Board should have denied

the application for the materials license. Their thesis isthat the testimony adduced by the applicant and supported

by the staff rests on faulty premises and should have been

rejected. Their first point challenges Dr. Brunot's calcu-

lation of the total quantity of radioactive fission pioducts

which might be produced in a saboteur-induced criticality.They do not dispute 'that the total is proportional to the

number of fissions which take place and that this in turn isrelated to the duration of the critical state. What they

do contend is that Dr. Brunot's testimony that the maximum

32/ Licensing Board Order of December 23, 1975, pp. 10-11.

33—

number of fissions would be 6 x 10 9 is arbitrary because

it rests on his assumption that any critical state established

by saboteurs'would necessarily be transitory. (Tr. 934-35;

1064). The intervenors assert that if the saboteurs strapped

the fuel elements together with bonds of sufficient strength „,

to prevent their disruption, the critical state could be

extended to allow a far greater number of fissions than

Dr. Brunot predicted.

This claim is refuted by the uncontradicted expert,

evidence. Nitnesses with unchallenged qualifications inthe field of nuclear engineering testified that. the forces

which would develop immediately upon the occurrence of a

"criticality incident" (i.e., a nuclear excursion) would

he of such magnitude that no form of "strapping" the assem-

blies together could prevent their -immediate disassemblyI

(in "milliseconds" ) or preclude extreme distortion of the

fuel pins. (Tr. 1060-65, 1074-75, 1097). Either consequence

would promptly terminate criticality by removal of the

critical mass or destruction the necessary spacing of the

pins. (See p. 20, ~sn ra ) In.tervenors'ssertion that

criticality could be maintained by binding the assemblies

34

was no more than an unsupported hypothetical which they

posed to expert witnesses and which those witnesses flatlyrejected. As the courts have ruled, "[i]tis axiomatic

that'a hypothetical question is not evidence. Xt should be

an accurate summation of the evidence already presented inthe record and can neither add to nor detract from thatevidence." M~ers v. Weinberger, 514 F.2d 293, 294 (6th Cir.

197S) (overturning an administrative decision which realied

on hypotheses unsupported by evidence in the record.). Con-

sequently, the Board below may not be faulted for crediting

expert testimony on the number of fissions over a mere33/

hypothesis devoid of evidentiary support.

J

33/ Our own review of the record. convinces us that Dr. Brunot'sfigure (6 x 10 fissions) is not too low but too high.Even were it possible to bind several Diablo Canyon fuelassemblies together and operate them as a natural con-vection-cooled pool-type reactor, at a steady power of1 megawatt the assembly would need 30 minutes to produce6 x 1019, fissions. But our own experience is that steady-state reactor operation requires extensive instrumentationand elaborate controls. These simply could not be set upin a few hours We.agree, therefore, that assuming arcruendothat saboteurs could achieve criticality by binding nuclearfuel assemblies together and putting them back in,the

fuel'toragepool (or the ocean), what would follow (ifanything)'ould

be a sudden excursion, of which mere bonds could notprevent almost instantaneous. disassembly and immediatecessation of criticality. Dr. Brunot's use of 6 x 1019fissions is the result of its being the largest valuelisted in a table of reactor criticality accidents. See,Thompson and Beckerly, Reactor Safet Technolo , Vol. 1,

(Continued on next a e.)

35

(d). lntervenors also criticize the testimony, credited

by the Board'elow, respecting the rate at which radioactive

fission products would be released from the new fuel and

cladding in the event of an excursion incident. For reasons

we need not rehearse in detail here, Dr. Brunot testifiedthat, given the new fuel and brevity of the criticalityexcursion, a release of about 1/100th of the amount of radio-

active isotopes would occur in the postuled incident asa

33/ (Continued from revious a e.)

Ch. 11, pp. 616-17, Table 3.1. But the accident fromwhich this result was derived was not of the suddenexcursion type. Rather, it involved a relatively long(70-second) power'operation in a cooled reactor. lnour judgment, the results of certain "SPERT'xcursiontests (also reported in Thompson and Beckerly, op. cit.~su ra, pp. 684-85)'are closer to the situation rnter-venors postulate. Xn these tests, control rods wereforcibly ejected from the reactor system, providing astep increase in the multiplication constant (Keff)beyond unity and a rapid, transient super-criticalitywhich re~glted in a total number of fissions of about5.5 x 10 . (See Tr. fol. 912 at p. 6-8). We considerthis figure a more reasonable upper bound on the numberof fissions to be anticipated from an excursion with aslightly enriched U02 fuel system such as the one atDiablo Canyon.

Intervenors complain that differences between the testedsystem and the, Diablo fuel make it inappropriate to useSPERT data. According to staff witness, however, thesetests provide the best experimental or analytical informa-tion available and, in fact, are as close to a representa-Qion of the poorly specified "sabotage criticality" as onemight hope to achieve. (Tr. 1149-50). The key determining

~ parameters in the SPERT tests are similar to those presentat, the Diablo Canyon facility, i.e., low enriched U02 fueland a water moderator, Differences between the test fueland the Diablo fuel such as fuel pin size, spacing, andtype of cladding material, would have little effect on thetotal fission yield. We therefore agree with the staffthat, on this issue, 'Dr. Brunot's figures are conservative.

I

36

compared with the release of such products in an accident,with spent fuel. This, combined with other factors (disper-sion and decay), would in his judgment result in an individualdose at the site boundary of 1/600th that which would occur

from the "Fuel Handling Accident" analysed in the FSAR, which34/itself is within permissible Commission guidelines. He

attributed the overall difference in dosages essentiallyto the greater amount of undecayed fission products which

would have accumulated in and would be released from the

spent fuel because of its extended use, while the new fuelwould have experienced but a brief state of criticality and

accumulated correspondingly fewer such fission products.

Dr. Brunot supported his testimony with references to exper-

imental data, inter a'1'ia, the "SPERT" analysis. (Tr. fol. 912

at 6-8, 950-51).

As before, intervenors'bjections are not based on any

contrary evidence of their own. They simply disagree withDr. Brunot's'onclusions. Much of their argument on thispoint is directed at disputing that the experimental resultsof the SPERT tests are appropriate for Diablo fuel, a con-

tention which we rejected earlier See .fn. 33, ~su ra Int.er-venors again complain that Dr. Brunot limited his testimony

34/ See t'n. 31, ~su ra.

ls

37

I

to evaluating a criticality of a transient nature and made "no

effort * * *,to ascertain or even suggest the consequences of

a criticality o'ccurring in a bound and restrained fuel assem-

bly bundle." .(Br. p. 4.) The short answer to this complaint

was given earlier; such restraints could not effectively pro-C

long any critical event. See fn. 27,''~su'a.

What intervenors apparently have not appreciated is that'the most effective retardant of fission'roducts is the UO2

I

fuel itself. Even when a reactor is operated at its rated

power —and,the high temperatures there developed enhance

the diffusion of the individual atoms of the various fissionproducts from the ceramic fuel pellets —only a small frac-

tion of the radioisotopes created by the fission process ever

(Tr. fol. 912 at 8, Tr. 1205,diffuses out of the fuel.FSAR 11.1-2 and 3). A fortiori, under conditions of"excursive .criticality" such as those likely to be associated

with the hypothetical acts of sabotage postulated by inter-venors (assuming any criticality at all), or for that matter

under the extended period of criticality at a steady state,lower power, low temperature operation of intervenors'lter-nate hypothesis, an even smaller fraction of those fissionproducts would escape. (Tr. 1204-05). We therefore accept as

reasonable Dr. Brunot's values regarding the rate of isotopicrelease in the event of an excursion incident with new fuel.

4p

ea

38

(e) . Lastly, intervenors challenge Dr. Brunot' com-

putation of that fraction of the fission products which,

though released from the nuclear fuel, necessarily could not

affect the public because absorbed by the water moderator,

trapped in the fuel building and its filter system or diluted

by atmospheric dispersion. Intervenors do not deny that some

portion of those fission products will be thus= neutralized.

Rather, they claim that Dr. Brunot's computation of thatfraction rests on faulty premises. In particular, intervenors

contend that he unjustifiably assumed that the saboteurs would

necessarily create any criticality incident in the fuel pool

under 23 feet of water and would not be able to shut down

the filter system. They also claim there to be,no foundation

for Dr. Brunot's use of a reduction factor for atmosph'eric

dilution and downwind decay six times greater than thatapplicable to the spent fuel accident analyzed in the FSAR.

Those criticisms are not well founded. First, forreasons previously explained, the presence of water is indis-

35/putably necessary to achieve criticality. But water also

absorbs fission products. The Board below found that the

only possibility (and this more theoretical than practical)remotely "credible" of saboteurs forming a critical mass

35/ See pp. 19-20, ~eu ra, and Tr 857..

t

43

39

with'the 'stored fuel required them to make use of the 40 foot36/

deep fuel storage pool. Even assuming that saboteurs were

able to establish criticality by reassembling fuel elements

atop the pool storage racks, the rack tops are 23 feet under

water (Tr.'060), the figure used by Dr. Brunot in his calcu-lations.

Second, it is simply incorrect that Dr. Brunot assumed

that the fuel building filter system would be operating; therecord reflects that he also made allowance for the possibil-ity that it might fail. (See. Tr. fol. 912 at p. 9). Finally,the reason the reduction factor for atmospheric dilution and

downward decay is greater in the case of an incident. with.new (unused) fuel than with spent (used) fuel lies in the

1

nature of the fission products coupled with each. As explainedearlier, a much larger proportion of fission products havingshort half-lives are associated with the former than withthe latter. A portion of those short-lived products naturallydecays during the time required for them to travel downwind

from their point, of release into the atmosphere to the siteboundary.. (see p. 30, ~su ra, and Tr. 1149).

36/ Order of December 23, 1975, p. 9. The expert witnessesconsidered all the other hypotheses suggested by inter-venors (including the one that saboteurs might transportthe fuel elements to the ocean) as "incredible." (See e.g.,Tr. 904). No contrary evidence was offered by intervenors..Given'he great weight of the individual fuel assembliesand the consequent need to maneuver them by crane, wecan not fault the Board's finding in this respect. Seefn. 27, ~su ra.

I ~

y ~E

40

I

Moreover, even were this reduction factor assumed to

be identical in the case of both new and spent fuel, itwould hold no significance for this case. The potential

public exposure to radiation at the site boundary as a

result of a criticality incident with new fuel would stillbe less by a factor of 100 than that calculated in the FSAR

for the [Spent] Fuel Handling Accident. Such exposures fall37/

well within the Commission's safety guidelines.

IXI.We cannot close this opinion without at least a brief

comment on the Licensing Board's handling of hypothetical

questions. The Board permitted the intervenors, over timely

objections, to pose hypothetical questions to applicant and

staff witnesses which assumed facts unsupported by evidence,38/if not contrary to it. We agree that the appropriateness

of a hypothetical question is a matter largely for the trialboard's discretion. But, even recognizing that intervenors

were proceeding without, counsel, we think the Board below

departed too far from the "general rule * * * that a hypothet-

ical should remain within the evidence and include only

such facts as are supported by the evidence or which the

h

37/ See p. 31, ~su ra

38/ See, e.cC., Tr. 916-17A, 1018-25, 1070-74.

r40 ~~

g

41

evidence tends to prove." Grand Island Grain Co. v. Roush

Mobile Home Sales, Inc., 391 F.2d 35, 41 (8th Cir. 1968)

(Blackmun, J.). Such departures are at best unfair and atworst lead to a misleading and unsatisfactory record. Accord-

ingly, they should be avoided. Assuming that the BoardN

erred in this respect, the errors were ini,ntervenors'avor

and, given our disposition of the case, were harmless.

For the -reasons developed in the foregoing opinion, theh

decision of the Licensing Board is affirmed.It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSINGAPPEAL BOARD

Margaret E. Du FloSecretary to theAppeal Board

UNITED STATES OF AHERICANUCLEAR REGULATORY COH )ISSION

In the Hatter of ))

PACIFIC GAS AND ELECTRIC COHPANY ))

.'DiabloCanyon, Units 1 and 2) ))'))

Docket No. (s) 5P-27550-323

CERTIFICATE OF SERVICE.

I hereby certify that I have this day served the foregoing document(s)upon each person designated on the official service list compiled bythe Office of the Secretary of the Commission in this proceeding inaccordance with the requirements of Section 2.712 of 10. CFR Part 2-Rules of Practice, of the Nuclear Regulatory Commission's Rules and

Regulations.

Dated at h~ashingt , C. thisday of 197

Office of the Secretary o . the Co ..ission

(

UNITED STATES OF AMERICANUCLEAR REGULATORY COilltISSION

In t: he Matter of

PACIFIC GAS AND ELECTRICCOMPANY

)))))

(Diablo Canyon, Units 1 and 2) ))))

Docket No. (s) 50-27550-323

SERVICE LIST

Elizabeth S. Bowers, Esq., ChairmanAtomic Safety and Licensing BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Mr. Glenn 0. BrightAtomic Safety and Licensing BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Dr. William E. MartinSenior EcologistBattelle Memorial InstituteColumbus, Ohio 43201

Richard S. Salzman, Esq., ChairmanAtomic Safety and Licensing Appeal

BoardU.,S. Nuclear Regulatory CommissionWashington, D. C. 20555

Dr. Laurence R. QuarlesAtomic Safety and Licensing Appeal

BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

,Dr. W. Reed JohnsonAtomic Safety and Licensing Appeal

BoardU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

Philip A. Crane, Jr., Esq.John C. Morrissey, Esq.Pacific Gas and Electric Company77 Beale StreetSan Francisco, California 94106

Stanley T. Skinner, Esq.Dennis C. Sullivan, Esq.Pacific Gas 6 Electric Company77 Beale StreetSan Francisco,'California 94106

John .P. Mathis, Esq.J. Calvin Simpson, Esq.J.awrence 0. Garcia, Esq.State Building, 5066San Francisco, California 94102

Andrew J. Skaff, Esq.California, Public Utilities CommissionState Building, 5066San Francisco, California 94102

Ms. Sandra A. Silver5055 Radford AvenueNorth Hollywood, California 91607

Ms. 'Elizabeth E. Apfelberg.1415 CazaderoSan Luis Obispo, California 93401

James Tourtellotte, Esq.Counsel for NRC StaffU. S. Nuclear Regulatory CommissionWashington, D. C. 20555

0

50-275, -323

0page 2

Mr. John J. Forster985 Palm StreetSan Luis Obispo, California 93401

Ms. Raye Fleming1746 Chorro StreetSan Luis Obispo, California 93401,

Mr. William P. CornwellP. 0. Box 453Morro Bay, California 93442

'r. Gordon A. Silver5055 Radford AvenueNorth Hollywood, California 91607

Mr. Dale Perkins, LibrarianSan Luis Obispo City County

LibraryP. O.. Box XSan Luis Obispo, California 93406

Yale I. Jones, Esq.100 Van Ness Avenue,19th FloorSan Francisco, California 94102

Paul C. Valentine, Esq.400 Charming AvenuePalo Alto, California 94302

IL

Py.i

'

UNITED STATES

NUCLEAR REGULATORY COMMISSION

WASHINGTON De Co 20555

OFFICE OF THE SECRETARY

REQUEST FOR REPORTING SERVICEWork Order No. AF- 796

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Can on Units 1 8 2

Docket No.: 50-275, 323 OL

Address of: Prehearing Cavalier Room, San Luis Ba Inn Marre Ranch Avila

Beach, California (805/595-2333)

Hearing

Duration: Prehearing One da Hearing

Date of: Prehearing 13 Jul 1976

Time of: Prehearing 9:30 a.m.

Hearing

Hearing

Service Required: Prehearing Schedule D

Hearing

Type of Hearing:

Board: Chairman Bowers Members Bri ht Martin

Copies of the transcript be so d.

Date of oral request: 6/21/76Date of confirmation: 6'41/76

By:K. M. Mason

Docketing and Service Section

bcc: Mrs. BowersMr. TourtellotteASLBPRe . FilesMs. HyltonMs. Slater-ASLAPCON

SPECIAL INSTRUCTIONS:

Pick-up from 12/11/75 start with a e

1225.

l